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'Suo motu': How Federal Court can act on its own to resolve N Sembilan crisis
Can the Federal Court intervene and solve the months-long Negeri Sembilan royal crisis on its own? A former Court of Appeal judge says yes.
This is because the crisis involves two major legal questions: Whether the state’s ruling chieftains - who are constitutionally empowered to dictate who sits on the throne - had duly exercised their authority to remove Tuanku Muhriz Tuanku Munawir as ruler; and whether those chieftains were lawful office bearers at the time of their proclamation.
Can the Federal Court intervene and solve the months-long Negeri Sembilan royal crisis on its own? A former Court of Appeal judge said yes.
This is because the crisis involves two major legal questions: Whether the state’s ruling chieftains - who are constitutionally empowered to dictate who sits on the throne - had duly exercised their authority to remove Tuanku Muhriz Tuanku Munawir as ruler; and whether those chieftains were lawful office bearers at the time of their proclamation.
Speaking to Malaysiakini, retired judge Hamid Sultan Abu Backer said the problem, however, is that the usual legal process is a very lengthy and slow one, whereas the Negeri Sembilan problem requires a more immediate resolution.
Thus, Hamid said, there is a need for the Federal Court to invoke “suo motu”.
A Latin legal term that means “of its own accord”, suo motu is a situation where a court or judge starts an action or proceeding on its own initiative instead of waiting for a case to be brought before it.
/file/publisher-c1a3f893382d2b2f8a9aa22a654d9c97/2021/02/a0f7bd7e4e592df62c786d5295bd5932.jpg "Judge Hamid Sultan Abu Backer 040221")
While there is no specific legal provision for this in Malaysia, Hamid (above) believed such powers could be derived by reading Article 121(1) of the Federal Constitution - which establishes the authority of the higher courts - together with the judicial oath of office to “preserve, protect, and defend” the Federal Constitution.
He said this will allow the Federal Court to bypass systemic delays and “deliver swift, definitive rulings on urgent constitutional disputes”.
Hamid argued that suo motu was necessary as the usual legal process is a lengthy one that is ill-suited for urgent crises.
If invoked, it would be the first time that the courts make such a move in Malaysia.
Slow progress
At present, the rebel territorial chieftains - who want to dethrone sitting ruler Tuanku Muhriz - have initiated a legal challenge against the Negeri Sembilan Council of the Yang di-Pertuan Besar and the Ruling Chiefs (Dewan Keadilan dan Undang or DKU).
It seeks the release of meeting minutes from April 17, in which the DKU - the state’s advisory body on customary affairs - removed faction leader Mubarak Thahak as Sungai Ujong chieftain.
READ MORE: KINIGUIDE | Negeri Sembilan royal rumble: What's going on?
The case has resulted in an injunction meant to preserve the status quo in Negeri Sembilan, but the progress has been slow.
The suo motu proposal comes in response to arguments which include that the Yang di-Pertuan Besar should invoke Article 34(3) of the Negeri Sembilan state constitution.
Article 34(3) allows the state ruler to refer any questions about the state constitution to the Federal Court, and the apex court would be compelled to state an opinion.
However, Hamid argued that the use of Article 34(3) can only be used on the advice of the executive.
Ongoing conflict
Tuanku Muhriz is in conflict with Menteri Besar Ismail Lasim and the state executive council.
The menteri besar and state exco want to enforce a disputed proclamation by a rebel faction of territorial chieftains ousting Tuanku Muhriz. He retaliated by revoking the appointments of the exco members, except for Ismail.
/file/attachments/orphans/TuankuMuhriz_885315.png "Tuanku Muhriz ibni Almarhum Tuanku Munawir is the eleventh Yang di-Pertuan Besar of Negeri Sembilan 210926")
The matter is further complicated as the state secretary and legal adviser - who are federal employees - are also at odds with the state exco, and have even gazetted the removal of members.
READ MORE: 'Overtaken by events' - MB dodges shifting loyalty, 'forced to sign' posers
This could cause major problems in the administration of the state if the executive’s authority and legitimacy continue to be in question.
Meanwhile, there are also arguments that a state of emergency should be declared in Negeri Sembilan, pending a royal tribunal by the Conference of Rulers to resolve the conflict.
On this, Hamid has argued that such a move is an unconstitutional shortcut, and that his suo motu proposal is the right way to go about it.
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Retired judge Hamid Sultan Abu Backer’s proposal may offer the best way through the Negeri Sembilan constitutional crisis. If the Federal Court can properly act suo motu, it could bring the competing constitutional claims before the nation’s highest court for authoritative determination. This would be preferable to allowing the dispute to be settled through political pressure, competing proclamations or appeals to royal power. The issue is larger than the individuals and institutions presently involved. It concerns where lawful authority ultimately lies within Malaysia’s constitutional system. A Federal Court judgment would establish an enduring precedent: the Federal Constitution, as interpreted by the courts, is the final legal arbiter. Even royal authority must be exercised within the constitutional framework, just as governments and elected officials remain subject to it. Malaysia once again needs to demonstrate that no institution stands above the law. A reasoned judgment would not diminish the Negeri Sembilan monarchy. It would clarify and protect its constitutional place while reaffirming that Malaysia is ultimately governed by the rule of law.
As the UMNO politicians have crossed the line attempting, for no publically announced detailed justification to remove the Sultan, so should the Sultan come out with his gloves on and cross the line into politics and explain just what pressure he was under to do UMNO's bidding. The people are not stupid they know it's greed based. Fire the MB arrest him and the Exco for sedition and seize the inniative even if it means fresh elections. Do not sit on the throne and do nothing. The people expect!
Suo motu actions by the Judiciary in India is common. Unfortunately Malaysian Judiciary is either oblivious or too scared to apply that power. First you got to remove the current powers controlling the tennure and promotion of Judges.
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